9.104-5 Representation and certifications regarding responsibility matters
Source: FAR 9.104-5 on acquisition.gov
Contractors must accurately disclose responsibility matters and respond to information requests, or risk being deemed nonresponsible and ineligible for award.
Overview
FAR 9.104-5 outlines the procedures and requirements for contracting officers and offerors regarding representations and certifications about responsibility matters, such as indictments, convictions, civil judgments, and delinquent federal taxes. It mandates specific actions when an offeror discloses adverse information in required certifications, including requesting additional information, notifying agency officials, and, in certain cases, prohibiting contract awards unless a determination is made by a suspending and debarring official. The section also addresses the consequences for offerors who fail to provide required representations or certifications.
Key Rules
- Affirmative Responses in Responsibility Certifications
- If an offeror indicates issues (e.g., indictments, convictions, tax delinquencies) in certifications (52.209-5, 52.212-3, 52.209-11), the contracting officer must request additional information and notify the appropriate agency official.
- Debarment and Suspension Consideration
- For corporations with certain felony convictions or tax liabilities, no award may be made unless a suspending and debarring official determines that suspension or debarment is unnecessary.
- Certification Regarding Tax Matters
- For contracts over $7 million, the offeror must affirmatively certify compliance with tax matters per 52.209-12, or the contract cannot be awarded.
- Failure to Provide Certifications
- Offerors who do not provide required certifications or information are given a chance to remedy, but failure to do so may result in a finding of nonresponsibility.
Responsibilities
- Contracting Officers: Must request additional information, notify agency officials, and ensure compliance with certification requirements before award.
- Contractors: Must provide accurate and complete representations and certifications, and respond to requests for additional information.
- Agencies: Must have procedures for notification and consideration of suspension or debarment actions.
Practical Implications
- Ensures only responsible contractors receive awards by requiring disclosure and review of adverse legal or tax matters.
- Contractors must be diligent in completing certifications and responding to information requests.
- Failure to comply can result in nonresponsibility determinations or ineligibility for award, especially for contracts over $7 million.
(a) When an offeror provides an affirmative response in paragraph (a)(1) of the provision at 52.209-5, Certification Regarding Responsibility Matters, or paragraph (h) of provision 52.212-3, the contracting officer shall-
(1) Promptly, upon receipt of offers, request such additional information from the offeror as the offeror deems necessary in order to demonstrate the offeror’s responsibility to the contracting officer (but see 9.405); and
(2) Notify, prior to proceeding with award, in accordance with agency procedures (see 9.406-3(a) and 9.407-3(a)), the agency official responsible for initiating debarment or suspension action, where an offeror indicates the existence of an indictment, charge, conviction, or civil judgment, or Federal tax delinquency in an amount that exceeds $15,000.
(b) The provision at 52.209-11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law, implements sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) (and similar provisions in subsequent appropriations acts). When an offeror provides an affirmative response in paragraph (b)(1) or (2) of the provision at 52.209-11 or paragraph (q)(2)(i) or (ii) of provision 52.212-3, the contracting officer shall–
(1) Promptly, upon receipt of offers, request such additional information from the offeror as the offeror deems necessary in order to demonstrate the offeror's responsibility to the contracting officer (but see 9.405);
(2) Notify, in accordance with agency procedures (see 9.406-3(a) and 9.407-3(a)), the agency official responsible for initiating debarment or suspension action; and
(3) Not award to the corporation unless an agency suspending and debarring official has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government.
(c) If the provision at 52.209-12, Certification Regarding Tax Matters, is applicable (see 9.104-7(e)), then the contracting officer shall not award any contract in an amount greater than $7 million, unless the offeror affirmatively certified in its offer, as required by paragraph (b)(1), (2), and (3) of the provision.
(d) Offerors who do not furnish the representation or certifications or such information as may be requested by the contracting officer shall be given an opportunity to remedy the deficiency. Failure to furnish the representation or certifications or such information may render the offeror nonresponsible.